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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE
KNOXVILLE DIVISION BREATHE ECIGS CORP, ) )
Plaintiff, ) )
v. ) Civil Action No. ________________ )
BREATHE LLC, ) )
Defendant. ) )
COMPLAINT Plaintiff Breathe eCigs Corp (hereinafter “Plaintiff”), in support of its claims against
Defendant Breathe LLC (hereinafter “Defendant”), alleges the following:
PARTIES
1. Plaintiff, Breathe eCigs Corp, is a corporation of the State of Nevada having its
principal place of business at 9921 Lani Lane, Knoxville, Tennessee 37932.
2. On information and belief, Defendant, Breathe LLC, is a Florida limited-liability
company having a principal place of business located at 3050 Dyer Boulevard, No. 106,
Kissimmee, Florida 34741. On information and belief, Defendant also maintains places of
business at 8167 Main Street, Suite 206, Ellicott City, Maryland 21043, and 1400 Mount
Jefferson Road, Suite 7, West Jefferson, North Carolina, 28694.
JURISDICTION AND VENUE
3. This is an action for trademark infringement arising under common law, for unfair
competition arising under 15 U.S.C. § 1125(a) and at common law, for a Declaratory Judgment
Case 3:15-cv-00345-TAV-HBG Document 1 Filed 08/10/15 Page 1 of 11 PageID #: 1
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that United States Trademark Registration No. 4,633,887 is not infringed by Plaintiff, and for
cancellation of United States Trademark Registration No. 4,633,887.
4. This Court has subject matter jurisdiction over Plaintiff’s claims for trademark
infringement, unfair competition, declaratory judgment, and cancellation pursuant to 15 U.S.C. §
1119 and 1121, and 28 U.S.C. § 1331, 1332, 1338, 2201, and 2202.
5. On information and belief, Defendant has advertised and sold products within this
judicial district. Accordingly, this Court has personal jurisdiction over the Defendant.
6. Venue is proper in this judicial district pursuant to 28 USC § 1391.
STATEMENT OF FACTS
7. Plaintiff is in the business of developing, manufacturing, and selling electronic
cigarettes, propylene glycol and vegetable glycerin based liquid for electronic cigarettes, and
other related accessories for electronic cigarettes. Since at least as early as May of 2013,
Plaintiff, and/or its predecessors in interest, has marketed and sold its electronic cigarettes and
related products in interstate commerce using the trademark “BREATHE.”
8. Plaintiff is the owner of the domain name “breathecig.com” and advertises and
sells its products via an internet web page located at http://www.breathecig.com. A printout of
Plaintiff’s website, showing Plaintiff’s “BREATHE” trademark, is attached hereto as Exhibit A.
9. Plaintiff has spent considerable time, effort, and expense promoting, advertising,
and popularizing its “BREATHE” trademark throughout the United States, with the result that
the purchasing public has come to know, rely upon, and recognize Plaintiff’s “BREATHE”
trademark as an indicator of the source of the goods offered and sold thereunder. Plaintiff has
established valuable goodwill in its “BREATHE” trademark. Accordingly, Plaintiff has
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developed common law trademark rights in its “BREATHE” trademark, and such trademark is
lawfully entitled to a broad ambit of protection against infringing uses.
10. On information and belief, Defendant is a direct competitor of Plaintiff. More
specifically, on information and belief, Defendant is in the business of selling propylene glycol
and vegetable glycerin based liquid for electronic cigarettes.
11. On information and belief, Defendant is the owner of the domain name
“breatheic.com” and advertises and sells its products via an internet web page located at
http://www.breatheic.com under the mark “BREATHE INTELLIGENT CIGARETTE &
Design” and/or similar variations thereof. A printout of Defendant’s website, showing
Defendant’s “BREATHE INTELLIGENT CIGARETTE & Design” mark, is attached hereto as
Exhibit B.
12. On information and belief, Defendant is the owner of United States Trademark
Registration No. 4,633,887, which was registered on November 4, 2014. A copy of United
States Trademark Registration No. 4,633,887 (hereinafter “the ‘887 Registration”) is attached
hereto as Exhibit C. The ‘887 Registration issued from U.S. Application Serial No. 86/076,790
(hereinafter “the ‘790 Application”), an intent-to-use federal trademark application filed on
September 27, 2013.
13. The ‘790 Application was filed subsequent to the first use of Plaintiff’s
“BREATHE” trademark. Accordingly, Plaintiff has superior priority in its “BREATHE”
trademark over any constructive use afforded to Defendant’s “BREATHE INTELLIGENT
CIGARETTE & Design” mark by virtue of the September 27, 2013 filing date of the ‘790
Application. Furthermore, the ‘887 Registration indicates Defendant’s “BREATHE
INTELLIGENT CIGARETTE & Design” mark was first used in interstate commerce on April
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22, 2014, after the first-use date of Plaintiff’s “BREATHE” trademark in interstate commerce.
Thus, the first use of Plaintiff’s “BREATHE” trademark predates both Defendant’s constructive
use and Defendant’s actual first use of “BREATHE INTELLIGENT CIGARETTE & Design,”
and Plaintiff has superior trademark rights in its “BREATHE” trademark over Defendant’s
“BREATHE INTELLIGENT CIGARETTE & Design” mark.
14. Defendant’s “BREATHE INTELLIGENT CIGARETTE & Design” mark
incorporates a phonetically identical variation of Plaintiff’s “BREATHE” trademark and is
confusingly similar to Plaintiff’s “BREATHE” trademark.
15. Defendant’s goods associated with the “BREATHE INTELLIGENT
CIGARETTE & Design” mark and the goods set forth in the ‘887 Registration, namely,
“Cartridges sold filled with propylene glycol for electronic cigarettes; cartridges sold filled with
vegetable glycerin for electronic cigarettes,” are confusingly similar to Plaintiff’s goods.
16. Defendant’s goods are likely to be purchased by the same consumers who
purchase and/or use Plaintiff’s goods.
17. Defendant’s unauthorized use of its “BREATHE INTELLIGENT CIGARETTE
& Design” mark, a mark which is confusingly similar to Plaintiff’s “BREATHE” trademark, in
connection with the sale of products which are confusingly similar to Plaintiff’s products, is
likely to cause confusion among consumers and misrepresents the origin of the goods and
services offered by the Defendant. Purchasers, potential purchasers and others are likely to
mistakenly believe that the Defendant’s goods offered under the mark “BREATHE
INTELLIGENT CIGARETTE & Design” are produced, sponsored, endorsed, or approved by
Plaintiff, or are in some way affiliated, connected, or associated with Plaintiff, causing damage
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and injury to Plaintiff. Such conduct by the Defendant has irreparably harmed, and continues to
irreparably harm, Plaintiff.
18. On or about August 5, 2015, Plaintiff received a letter dated July 21, 2015 from
counsel for Defendant alleging that Plaintiff is infringing Defendant’s trademark. On
information and belief, in this letter, Defendant, by and through its counsel, alleges that
Plaintiff’s use of its “BREATHE” trademark constitutes infringement of alleged trademark rights
held by Defendant in its “BREATHE INTELLIGENT CIGARETTE & Design” mark. A copy
of this letter is attached hereto as Exhibit D.
19. In the letter, Defendant demanded, among other things, that Plaintiff provide “a
full accounting of all monies associated with your business” and that Plaintiff
“remove/deactivate your website.” Such demands were backed by the threat of litigation.
Accordingly, an actual case or controversy exists between the parties.
20. Continued registration of the “BREATHE INTELLIGENT CIGARETTE &
Design” mark would confer upon Defendant statutory presumptions to which it is not entitled in
view of Plaintiff’s prior use of its “BREATHE” trademark, resulting in further damage and
injury to the Plaintiff.
COUNT I
TRADEMARK INFRINGEMENT
21. The allegations of paragraphs 1 through 20 above are restated and incorporated
herein by reference.
22. Defendant’s unauthorized use of marks which incorporate phonetically identical
variations of Plaintiff’s “BREATHE” trademark, and/or which are confusingly similar to
Plaintiff’s “BREATHE” trademark (i.e. “BREATHE INTELLIGENT CIGARETTE & Design”
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and/or similar variations thereof), in connection with the sale of products which are confusingly
similar to Plaintiff’s products, is likely to cause confusion of purchasers and the public in
general, to cause mistake and to deceive the purchasing public and others. These acts constitute
infringement of Plaintiff’s trademark rights in its “BREATHE” trademark arising under common
law.
23. On information and belief, Defendant’s acts of trademark infringement were
committed with the willful and knowing intent to cause confusion and mistake and to deceive the
public.
24. Defendant’s acts of trademark infringement have irreparably damaged Plaintiff.
25. It would be difficult to ascertain the amount of compensation which could afford
Plaintiff adequate relief for such acts. Accordingly, Plaintiff’s remedy at law is not adequate to
compensate it for injuries threatened.
COUNT II
UNFAIR COMPETITION
26. The allegations of paragraphs 1 through 25 above are restated and incorporated
herein by reference.
27. Defendant’s unauthorized use of marks which incorporate phonetically identical
variations of Plaintiff’s “BREATHE” trademark, and/or which are confusingly similar to
Plaintiff’s “BREATHE” trademark (i.e. “BREATHE INTELLIGENT CIGARETTE & Design”
and/or similar variations thereof), in connection with the sale of products which are confusingly
similar to Plaintiff’s products, constitutes a false designation of origin which is likely to cause
confusion, to cause mistake, and to deceive the public and potential customers as to the
affiliation, connection or association of Defendant with Plaintiff and as to the origin,
Case 3:15-cv-00345-TAV-HBG Document 1 Filed 08/10/15 Page 6 of 11 PageID #: 6
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sponsorship, or approval of Defendant’s goods and/or services by Plaintiff. These acts are in
violation of 15 U.S.C. § 1125(a), in that Defendant has used in connection with goods and
services a false designation of origin and a false or misleading description and representation of
fact which is likely to cause confusion, and to cause mistake, and to deceive as to the affiliation,
connection, or association of Defendant with Plaintiff and as to the origin, sponsorship, and
approval of Defendant’s goods, services and commercial activities by Plaintiff. Such activities
by Defendant also constitute acts of common law unfair competition.
28. Defendant’s acts of federal and common law unfair competition were committed
with the intent to cause confusion and mistake and to deceive the public.
29. Defendant’s acts of federal and common law unfair competition have damaged
Plaintiff.
30. It would be difficult to ascertain the amount of compensation which could afford
Plaintiff adequate relief for such acts. Accordingly, Plaintiff’s remedy at law is not adequate to
compensate it for injuries threatened.
COUNT III
DECLARATORY JUDGMENT OF NON-INFRINGEMENT OF ‘887 REGISTRATION
31. The allegations of paragraphs 1 through 30 above are restated and incorporated
herein by reference.
32. As a result of the aforementioned letter, Plaintiff has a reasonable fear and
apprehension that trademark infringement litigation will be brought against it by the Defendants.
An actual justiciable controversy therefore exists between the parties.
33. Plaintiff has not infringed any valid trademark rights owned by Defendant with
regard to Defendant’s “BREATHE INTELLIGENT CIGARETTE & Design” mark. In this
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regard, Plaintiff has superior trademark rights in its “BREATHE” trademark over Defendant’s
“BREATHE INTELLIGENT CIGARETTE & Design” mark.
34. The allegations of Defendant that Plaintiff has infringed alleged trademark rights
held by Defendant in its “BREATHE INTELLIGENT CIGARETTE & Design” mark are
frivolous, and Plaintiff is entitled to a Declaration and Judgment that Plaintiff has not infringed,
and is not infringing, any trademark rights of Defendant with regard to the “BREATHE
INTELLIGENT CIGARETTE & Design” mark.
35. This is an exceptional case within the meaning of 15 U.S.C. §1117 entitling
Plaintiff to an award of its attorney fees and costs of this litigation.
COUNT IV
CANCELLATION OF THE ‘887 REGISTRATION
36. The allegations of paragraphs 1 through 36 above are restated and incorporated
herein by reference.
37. The “BREATHE INTELLIGENT CIGARETTE & Design” mark and the goods
set forth in the ‘887 Registration so resemble Plaintiff’s “BREATHE” trademark and goods as to
be likely to be confused therewith and mistaken therefor.
40. The “BREATHE INTELLIGENT CIGARETTE & Design” mark set forth in the
‘887 Registration so resembles Plaintiff’s “BREATHE” trademark as to be likely, when used on
or in connection with the goods identified in the ‘887 Registration, to cause confusion, mistake,
or deception among purchasers, potential purchasers and others. Purchasers, potential purchasers
and others are likely to mistakenly believe that the Defendant’s goods/services offered under the
“BREATHE INTELLIGENT CIGARETTE & Design” mark are produced, sponsored, endorsed
Case 3:15-cv-00345-TAV-HBG Document 1 Filed 08/10/15 Page 8 of 11 PageID #: 8
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or approved by Plaintiff, or are in some way affiliated, connected or associated with Plaintiff,
causing damage and injury to Plaintiff.
41. Further, continued registration of the “BREATHE INTELLIGENT CIGARETTE
& Design” mark would confer upon Defendant statutory presumptions to which it is not entitled
in view of Plaintiff’s prior use of its “BREATHE” trademark, resulting in further damage and
injury to the Plaintiff.
42. Therefore, the ‘887 Registration should be cancelled pursuant to 15 U.S.C. §§
1052(d) and 1064.
WHEREFORE, Plaintiff prays for judgment against Defendant as follows:
A. That Defendant and all of Defendant’s agents, servants, employees, officers,
attorneys, successors and assigns and all other persons in active concert or participation with it,
and/or controlled by it, be temporarily, preliminarily, and permanently enjoined from:
i. using Plaintiff’s trademarks, including without limitation “BREATHE”, any
colorable imitations thereof, and/or any trademarks, service marks, trade names and/or
domain names confusingly similar thereto including without limitation “BREATHE
INTELLIGENT CIGARETTE & Design”;
ii. otherwise offering products for sale in a misleading manner, or misrepresenting
Defendant’s affiliation with Plaintiff or otherwise unfairly competing with Plaintiff
and/or infringing Plaintiff’s trademarks.
B. That Defendant be directed to file with the Court and serve upon Plaintiff, within
thirty (30) days after issuance of any injunction, a written report setting forth in detail the manner
and form in which Defendant has complied with the injunction.
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C. That Defendant be required to account to Plaintiff for any and all profits derived
by Defendant from the sale of their goods and/or services and for all damages sustained by
Plaintiff by reason of said acts of infringement and unfair competition complained of herein.
D. That Plaintiff be awarded its damages, including corrective advertising damages,
for Defendant’s infringement and unfair competition, and the profits derived by Defendant
pursuant to 15 U.S.C. § 1117 and the common laws of Tennessee.
E. That Plaintiff be awarded treble damages pursuant to 15 U.S.C. § 1117 in view of
Defendant’s willful, knowing, and intentional conduct.
F. That the Court find this to be an exceptional case and award Plaintiff its
reasonable attorney’s fees pursuant to 15 U.S.C. § 1117.
G. That Plaintiff be awarded punitive damages for intentional common law
trademark infringement and unfair competition.
H. That Plaintiff be awarded its costs of this action pursuant to 15 U.S.C. § 1117.
I. That the Court enter an Order permanently enjoining Defendant and all of
Defendant’s agents, servants, employees, officers, attorneys, successors and assigns and all other
persons in active concert or participation with it, and/or controlled by it, from making further
allegations or claims that Plaintiff has infringed any trademark rights in the “BREATHE
INTELLIGENT CIGARETTE & Design” mark.
J. That the ‘887 Registration be cancelled and that registration of the mark for the
goods therein specified be deemed invalid.
K. That Plaintiff be awarded such other and further relief that the Court deems just
and proper.
Case 3:15-cv-00345-TAV-HBG Document 1 Filed 08/10/15 Page 10 of 11 PageID #: 10
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Respectfully submitted, BREATHE ECIGS CORP
/JACOB G. HORTON/ Robert E. Pitts (Tenn. BOPR# 01610) [email protected] Andrew C. Lake (Tenn. BOPR# 29952) [email protected] Jacob G. Horton (Tenn. BOPR# 25467) [email protected] Raymond E. Stephens (Tenn. BOPR# 15037) [email protected] PITTS & LAKE, P.C. P.O. Box 51295 Knoxville, Tennessee 37950-1295 Phone: (865) 584-0105 Fax: (865) 584-0104 Attorneys for Plaintiff
Case 3:15-cv-00345-TAV-HBG Document 1 Filed 08/10/15 Page 11 of 11 PageID #: 11
EXHIBIT A
Case 3:15-cv-00345-TAV-HBG Document 1-1 Filed 08/10/15 Page 1 of 3 PageID #: 12
Home Breathe eCigs
Breathe eCigsALL CATEGORIES
FLAVOR PROFILES
$18.95
$16.95
Breathe Starter KitOriginal & Secret Flavors
$18.95
$16.95
Breathe Starter KitMenthol & Secret Flavors
Breathe eCigs (3)
Refill Kits (3)
Original
Woodsy tobacco
with a bright finish
Menthol
Revitalizing mint
with robust finish
Secret
Spicy and
mysterious notes
with a clean finish
FREEUSPS SHIPPINGFor Consumers
Page 1 of 2Breathe eCigs
8/10/2015https://shop.breathecig.com/index.php/breatheecigs.html
Case 3:15-cv-00345-TAV-HBG Document 1-1 Filed 08/10/15 Page 2 of 3 PageID #: 13
$18.95
$16.95
Breathe Starter KitDouble Secret Flavors
GRAND OPENING SPECIALAll Breathe Starter Kits are
$2.00 OFF!
Page 2 of 2Breathe eCigs
8/10/2015https://shop.breathecig.com/index.php/breatheecigs.html
Case 3:15-cv-00345-TAV-HBG Document 1-1 Filed 08/10/15 Page 3 of 3 PageID #: 14
EXHIBIT B
Case 3:15-cv-00345-TAV-HBG Document 1-2 Filed 08/10/15 Page 1 of 2 PageID #: 15
Case 3:15-cv-00345-TAV-HBG Document 1-2 Filed 08/10/15 Page 2 of 2 PageID #: 16
EXHIBIT C
Case 3:15-cv-00345-TAV-HBG Document 1-3 Filed 08/10/15 Page 1 of 3 PageID #: 17
Case 3:15-cv-00345-TAV-HBG Document 1-3 Filed 08/10/15 Page 2 of 3 PageID #: 18
Case 3:15-cv-00345-TAV-HBG Document 1-3 Filed 08/10/15 Page 3 of 3 PageID #: 19
EXHIBIT D
Case 3:15-cv-00345-TAV-HBG Document 1-4 Filed 08/10/15 Page 1 of 2 PageID #: 20
1
BROWN & ROSEN LLC Attorneys At Law
100 State Street, Suite 900
Boston, MA 02109
617-728-9111 (T)
617-695-3202 (F)
www.brownrosen.com
July 21, 2015
Via email only
Joshua Kimmel and
Chris Clark
Breathe eCigs Corp
9921 Lani Lane
Knoxville, TN 37932
RE: Trademark Infringement Breathe LLC
Dear Mr Kimmel and Mr. Clark:
This office is legal counsel to Breathe LLC (“Breathe”). Breathe is an electronic
cigarette company with a registered trademark with the United States Trademark Office.
Breathe’s website can be visited at www.breatheic.com.
Breathecig.com and your company, Breathe eCigs Corp. (“Corp”) are presently
infringing on the trademark of Breathe and wrongfully interfering with the business of
Breathe. At this time a full accounting of all monies associated with your business is
hereby demanded and you shall remove/deactivate your website today.
Failure to comply will lead to litigation forthwith. If you have any questions, do
not hesitate to contact me.
Sincerely,
Brown & Rosen LLC
By:
________________________
Christopher L. Brown
Case 3:15-cv-00345-TAV-HBG Document 1-4 Filed 08/10/15 Page 2 of 2 PageID #: 21
OJS 44 (Rev. 11/04) CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as providedby local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiatingthe civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)
I. (a) PLAINTIFFS DEFENDANTS
(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOLVED.
(c) Attorney’s (Firm Name, Address, and Telephone Number) Attorneys (If Known)
II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an “X” in One Box for Plaintiff(For Diversity Cases Only) and One Box for Defendant)
’ 1 U.S. Government ’ 3 Federal Question PTF DEF PTF DEFPlaintiff (U.S. Government Not a Party) Citizen of This State ’ 1 ’ 1 Incorporated or Principal Place ’ 4 ’ 4
of Business In This State
’ 2 U.S. Government ’ 4 Diversity Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place ’ 5 ’ 5Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State
Citizen or Subject of a ’ 3 ’ 3 Foreign Nation ’ 6 ’ 6 Foreign Country
IV. NATURE OF SUIT (Place an “X” in One Box Only)CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
’ 110 Insurance PERSONAL INJURY PERSONAL INJURY ’ 610 Agriculture ’ 422 Appeal 28 USC 158 ’ 400 State Reapportionment’ 120 Marine ’ 310 Airplane ’ 362 Personal Injury - ’ 620 Other Food & Drug ’ 423 Withdrawal ’ 410 Antitrust’ 130 Miller Act ’ 315 Airplane Product Med. Malpractice ’ 625 Drug Related Seizure 28 USC 157 ’ 430 Banks and Banking’ 140 Negotiable Instrument Liability ’ 365 Personal Injury - of Property 21 USC 881 ’ 450 Commerce’ 150 Recovery of Overpayment ’ 320 Assault, Libel & Product Liability ’ 630 Liquor Laws PROPERTY RIGHTS ’ 460 Deportation
& Enforcement of Judgment Slander ’ 368 Asbestos Personal ’ 640 R.R. & Truck ’ 820 Copyrights ’ 470 Racketeer Influenced and’ 151 Medicare Act ’ 330 Federal Employers’ Injury Product ’ 650 Airline Regs. ’ 830 Patent Corrupt Organizations’ 152 Recovery of Defaulted Liability Liability ’ 660 Occupational ’ 840 Trademark ’ 480 Consumer Credit
Student Loans ’ 340 Marine PERSONAL PROPERTY Safety/Health ’ 490 Cable/Sat TV(Excl. Veterans) ’ 345 Marine Product ’ 370 Other Fraud ’ 690 Other ’ 810 Selective Service
’ 153 Recovery of Overpayment Liability ’ 371 Truth in Lending LABOR SOCIAL SECURITY ’ 850 Securities/Commodities/ of Veteran’s Benefits ’ 350 Motor Vehicle ’ 380 Other Personal ’ 710 Fair Labor Standards ’ 861 HIA (1395ff) Exchange
’ 160 Stockholders’ Suits ’ 355 Motor Vehicle Property Damage Act ’ 862 Black Lung (923) ’ 875 Customer Challenge’ 190 Other Contract Product Liability ’ 385 Property Damage ’ 720 Labor/Mgmt. Relations ’ 863 DIWC/DIWW (405(g)) 12 USC 3410’ 195 Contract Product Liability ’ 360 Other Personal Product Liability ’ 730 Labor/Mgmt.Reporting ’ 864 SSID Title XVI ’ 890 Other Statutory Actions’ 196 Franchise Injury & Disclosure Act ’ 865 RSI (405(g)) ’ 891 Agricultural Acts
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS ’ 740 Railway Labor Act FEDERAL TAX SUITS ’ 892 Economic Stabilization Act’ 210 Land Condemnation ’ 441 Voting ’ 510 Motions to Vacate ’ 790 Other Labor Litigation ’ 870 Taxes (U.S. Plaintiff ’ 893 Environmental Matters’ 220 Foreclosure ’ 442 Employment Sentence ’ 791 Empl. Ret. Inc. or Defendant) ’ 894 Energy Allocation Act’ 230 Rent Lease & Ejectment ’ 443 Housing/ Habeas Corpus: Security Act ’ 871 IRS—Third Party ’ 895 Freedom of Information’ 240 Torts to Land Accommodations ’ 530 General 26 USC 7609 Act’ 245 Tort Product Liability ’ 444 Welfare ’ 535 Death Penalty ’ 900Appeal of Fee Determination’ 290 All Other Real Property ’ 445 Amer. w/Disabilities - ’ 540 Mandamus & Other Under Equal Access
Employment ’ 550 Civil Rights to Justice’ 446 Amer. w/Disabilities - ’ 555 Prison Condition ’ 950 Constitutionality of
Other State Statutes’ 440 Other Civil Rights
V. ORIGINTransferred fromanother district(specify)
Appeal to DistrictJudge fromMagistrateJudgment
(Place an “X” in One Box Only)’ 1 Original
Proceeding’ 2 Removed from
State Court’ 3 Remanded from
Appellate Court’ 4 Reinstated or
Reopened’ 5 ’ 6 Multidistrict
Litigation’ 7
VI. CAUSE OF ACTIONCite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): Brief description of cause:
VII. REQUESTED IN COMPLAINT:
’ CHECK IF THIS IS A CLASS ACTIONUNDER F.R.C.P. 23
DEMAND $ CHECK YES only if demanded in complaint:JURY DEMAND: ’ Yes ’ No
VIII. RELATED CASE(S) IF ANY (See instructions): JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
FOR OFFICE USE ONLY
RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE
Case 3:15-cv-00345-TAV-HBG Document 1-5 Filed 08/10/15 Page 1 of 2 PageID #: 22
JS 44 Reverse (Rev. 11/04)
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as requiredby law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the useof the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaintfiled. The attorney filing a case should complete the form as follows:
I. (a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use onlythe full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, givingboth name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the timeof filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases,the county of residence of the “defendant” is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, notingin this section “(see attachment)”.
II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.C.P., which requires that jurisdictions be shown in pleadings. Place an “X” in oneof the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an “X” in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to theConstitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of thedifferent parties must be checked. (See Section III below; federal question actions take precedence over diversity cases.)
III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this sectionfor each principal party.
IV. Nature of Suit. Place an “X” in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficientto enable the deputy clerk or the statistical clerks in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, selectthe most definitive.
V. Origin. Place an “X” in one of the seven boxes.Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petitionfor removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrictlitigation transfers.
Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this boxis checked, do not check (5) above.
Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judge’s decision.
VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutesunless diversity. Example: U.S. Civil Statute: 47 USC 553
Brief Description: Unauthorized reception of cable service
VII. Requested in Complaint. Class Action. Place an “X” in this box if you are filing a class action under Rule 23, F.R.Cv.P.Demand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction.Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases if any. If there are related pending cases, insert the docket numbersand the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.
Case 3:15-cv-00345-TAV-HBG Document 1-5 Filed 08/10/15 Page 2 of 2 PageID #: 23